June 07, 2012

What the Business Software Alliance audit letter does

What the Business Software Alliance audit letter does, is it identifies that it represents various entities, such as Microsoft, Adobe, Acrobat and various others and the software that those manufactures create and produce. The letter goes on to state that the recipient has been identified as somebody that could be using those various pieces of software without proper licensing, As a result, they say that that person receiving the letter may be in violation of the copyright act in the United States. More specifically, that they are infringing a copyright. As a result, they point to the fact that malicious and willful copyright infringement may entitle them to statutory damages of $150,000.

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This is attorney Brian Hall with Traverse Legal, PLC, a law firm that regularly represents copyright plaintiffs and defendants throughout the United States. Today, I will be talking about copyright infringement and specifically a letter that is being sent by the Business Software Alliance requesting an audit be done by various businesses and users of various pieces of software.

What the Business Software Alliance audit letter does, is it identifies that it represents various entities, such as Microsoft, Adobe, Acrobat and various others and the software that those manufactures create and produce. The letter goes on to state that the recipient has been identified as somebody that could be using those various pieces of software without proper licensing, As a result, they say that that person receiving the letter may be in violation of the copyright act in the United States. More specifically, that they are infringing a copyright. As a result, they point to the fact that malicious and willful copyright infringement may entitle them to statutory damages of $150,000.

After setting forth all of that information, they essentially ask that the recipient of the letter perform an audit and provide the results to the Business Software Alliance or BSA. When someone receives this letter, the first obvious question they have is, is this legitimate? As a copyright attorney, I can tell you that Business Software Alliance is indeed a legitimate organization representing legitimate companies, such as Microsoft, Adobe Acrobat, Autodesk and others and that the letter is indeed something that needs to be taken seriously.

The next question typically is whether the recipient of the letter has any obligation to provide the audit requested by BSA. The short answer to that question is, no, there isn't specifically any law that requires that they comply with an audit request at this point in time. However, practically speaking, if they do not reply with the audit request, the Business Software Alliance entity or the entities that it represents may simply file a copyright infringement lawsuit in federal court. At which point discovery would allow them to get all the information that they're requesting at this time via the audit.

It may be beneficial to simply comply with the audit and provide the information in hopes of arriving at a settlement short of litigation. Now, if the audit proves that there are licenses for each of the software identified, there is no reason not to provide that information and hopefully bring closure to the matter. However, if an audit is performed and it shows that licenses do not exist and therefore copyright infringement liability is likely, you definitely want to speak with a copyright attorney who can advise you as to next steps.

As I said before, a pre-litigation settlement may be possible, and it may include such things as money being paid by the recipient of the letter to BSA, or there may be other non-monetary components, such as a compliance plan. Whereby the recipient of the letter can ensure moving forward that they do have all the necessary licenses for software that they or their company uses. Ultimately, this is a serious matter that needs to be looked into by the recipient of the letter and if it at all possible, with the assistance of a copyright attorney.

The reality is the Business Software Alliance audit procedures are something that is ongoing. Individuals and others provide information to the Business Software Alliance that allows them to identify users of software who may not have the proper licensing and the required licensing in order to avoid copyright infringement. There's an incentive by Business Software Alliance and those that provide information about potential copyright infringement to Business Software Alliance to continue with these audit letters and the requests for information, to confirm whether or not indeed copyright infringement has occurred

Ultimately, if you are to receive a Business Software Alliance audit letter, the first thing you should do is take it seriously. The next thing you should do is, if possible, contact a copyright attorney to assist you with both the audit process and the response. Ultimately, you do not want to ignore this letter because you could have significant liability under the copyright act of the United States for copyright infringement.

Once again, this has been Brian Hall, addressing what appears to be a common practice by the Business Software Alliance, in sending audit letter requests and recipients having to determine how to respond to them.

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